Payola, radio's not-so-golden oldie, hits the little guys, too
By Joe Gross
Monday, August 1, 2005
The cost of getting Austin singer Bob Schneider's "Big Blue Sea" into rotation at New York radio station WDST: two pair of tickets to an Elton John concert.
The cost of a Lucinda Williams song at the same station: $500, which was billed right back to Williams' record label, Lost Highway Records.
The cost of getting Switchfoot on the air at Austin station KROX, also known as "101-X": $1,000 for a "flyaway," meaning the sort of "trip for two" that one wins in radio station contests.
Austin radio stations and local artists might find themselves caught up in New York Attorney General Eliot Spitzer's ongoing investigation into music industry pay-for-play schemes, commonly known as "payola."
Simply put, payola involves taking money or nonmonetary compensation for playing a record and not saying on-air that it was paid for. This has been illegal since 1960.
On July 25, Spitzer said he had reached a $10 million settlement with Sony BMG after an investigation uncovered dozens of cases in which the record giant bribed disc jockeys or otherwise paid radio stations to ensure they would play songs by artists including Jennifer Lopez, John Mayer, Celine Dion and Switchfoot.
FCC Commissioner Jonathan Adelstein told the American-Statesman last week that he plans to call for a federal investigation into the scandal.
Sony might have been the first on the block, but documents released by Spitzer's office appear to implicate other labels as well as independent promotion companies. Indie promoters are the firms paid by record labels to push songs onto radio.
One document from Michelle Clark Promotions, an indie promoter focusing on "triple-A" or "Adult Album Alternative" itemized money and gifts paid to WDST to play songs by Schneider and Williams, among many others. The payments came in two types.
Nonmoney payment included a free show from artist Shannon McNally, an Xbox for the Starsailor song "Good Souls," and tickets to an unspecified show for adding an Alanis Morissette song to the station's playlist.
Money payments included $500 for adding a Robert Cray song, but only $250 for rapper-turned-roots rocker Everlast (Poor Everlast -- no respect!).
"This was just the first prosecution," Spitzer spokesman Brad Maione said Wednesday. "We are looking at other labels and promoters. This investigation is definitely ongoing."
This is not a topic many in the industry would like to discuss. Schneider is in the studio recording and was unavailable for comment. Lost Highway officials declined to comment. Calls to KROX and KKMJ -- the Austin station that Epic Records approached with a Celine Dion "flyaway" in 2002 -- were not returned.
Some popular local artists don't even try to get on commercial radio anymore. Eliza Gilkyson has been on the independent Red House records label for six years and releases "Paradise Hotel," her fourth album for the label, on Tuesday.
"The last five years, I haven't even bothered to ante up to get in that game," Gilkyson says from the road. "To be in that world, two things have to be true: You have to have money and be of a certain age, I don't have either of those things. I'm just glad to know there's a world outside that system," meaning public radio and college radio.
Of course, when you don't have radio support and you want to make a living as a musician, you have to tour. Constantly. Gilkyson is in her mid-50s and is touring from now until mid-December. "I'm probably touring more often than not," she says. "I don't think there's any short cuts. If somebody isn't paying to plug you in to the system, the only way to do it is to play to 10 people the first time, 20 the second and build a career that way."
For artists, the realities of payola are a double-edged sword. Jeff Pinkus is the bassist and songwriter in the local band Honky, which just released its new album, "Balls Out Inn" on the independent label Small Stone. He was also the bass player in the Butthole Surfers for seven years, including a portion of the time that band spent on the major label Capitol Records.
"Payola's just fine with me as long as I'm benefiting from it," Pinkus jokes from the road. "I mean, my biggest problem when we were on Capitol was that they didn't spend any money promoting us. We definitely got the short end of the stick."
Pinkus gives voice to an uncomfortable truth: The winner-take-all business model major labels seem wedded to forces artists to look the other way when indie promoters, radio and labels engage in the sort of behavior for which Sony is now paying the consequences.
Pinkus continues: "Of course the little guy can't compete with this sort of thing. I have my own small label and there's just no way."
Michael Bracy, policy director for the nonprofit think tank Future of Music Coalition, was pleased with the news of Sony's settlement.
"Clearly, it's progress," Bracy said. His organization has been talking for years about the dangers of indie promotion, payola and media consolidation. (Bracy is also part owner of the Austin-based Misra records, which he started in 1997 in New York with local resident Phil Waldorf.)
"What's different about Spitzer is that he's a true investigator with subpoena power," Bracy said. "It wasn't a matter of the law being unambiguous. This is clearly a comprehensive investigation and good first step. The question now is, 'Are we going to see the second step? Will commercial radio be held to account the way the labels have?' "
When asked if the onus was on the labels or the radio stations, Bracy was direct. "I don't think it's inconsistent to say both," he said. "We think the government has also been absolutely responsible (for this situation) with their lack of oversight with what's been going on with radio," referring to the epidemic of radio consolidation in the late 1990s after the passage of the Telecommunications Act of 1996, which raised the limit on the number of stations a corporation could own in one market and eliminated the national cap. This led to the rise of radio giants such as the San Antonio-based Clear Channel Communications.
"There's always an impulse on the part of the labels to do whatever they can do to sell the most possible records; that's the reality of the music business," Bracy says. "When you have so few gatekeepers, you have to play ball by their rules."